Com. v. Glenn, W.

2020 Pa. Super. 128, 233 A.3d 842

• Court: Superior Court of Pennsylvania
• Decided: May 29, 2020
• Docket: 1595 WDA 2019
• Status: Published

Opinion

J-A09029-20 2020 PA Super 128

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : WAYNE RICHARD GLENN, : : Appellant : No. 1595 WDA 2019

Appeal from the Judgment of Sentence Entered October 4, 2019 in the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000158-2019

BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*

CONCURRING OPINION BY STRASSBURGER, J.: FILED MAY 29, 2020

Were this Court to reach the various canons of statutory construction,

I would agree with the Majority’s analysis. However, I would not reach

those canons because I find that the statutory language is not ambiguous.

See A.S. v. Pennsylvania State Police, 143 A.3d 896, 903 (Pa. 2016) (“It

is only when statutory text is determined to be ambiguous that we may go

beyond the text and look to other considerations to discern legislative

intent.”).

Briefly, subsection 3802(d) provides as follows.

(d) Controlled substances.--An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1) There is in the individual's blood any amount of a:

(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64),1 known as The Controlled Substance, Drug, Device and Cosmetic Act; ___________________ * Retired Senior Judge assigned to the Superior Court. J-A09029-20

(ii) Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) or (ii).

75 Pa.C.S. § 3802(d) (emphasis added).

Unlike subparagraphs (i) and (ii), subparagraph (iii) does not reference

Schedule I, II, or III substances when proscribing the existence of

metabolites in an individual’s blood. Rather, subparagraph (iii) specifically

references subparagraphs (i) and (ii), the latter of which includes an

exception for medically prescribed Schedule II and III substances.

Therefore, the plain language of the statute provides for the exception set

forth in subparagraph (ii) to carry through to subparagraph (iii), thereby

excepting metabolites of medically prescribed Schedule II and III

substances.

Thus, I agree with the Majority that Appellant’s conviction for DUI-

metabolite was unlawful because the metabolite existed in his blood only as

a result of a medically prescribed Schedule II substance, which I conclude is

not illegal pursuant to the plain language of 75 Pa.C.S. § 3802(d).

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